§ 15.3 Capacity to Stand Trial
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§ 15.3 CAPACITY TO STAND TRIAL
Before a prosecution can proceed, the defendant must have the mental capacity to undergo it. The rules regarding a defendant's capacity to stand trial are derived from the state statute and the federal Due Process Clause. See § 15.3-1(a) to § 15.3-1(c) (state statutory standards), § 15.3-2(a) to § 15.3-2(b) (federal standards). See also § 15.3-3(a) to § 15.3-3(b) regarding the administration of medication and the defendant's capacity to stand trial.
As a practical matter, the capacity issue will often arise when there is a GEI issue on the merits, but the GEI issue and the capacity issue are legally unrelated. See State v. Bostrom, 2 Or App 466, 467-68, 469 P2d 645 (1970). A defendant who was legally sane at the time of the offense can become unfit to stand trial by, for example, receiving a head injury, or having a psychotic break while in custody. A defendant who was legally insane at the time of the offense can become fit to proceed while waiting for trial, particularly if drug consumption was a factor in the defendant's insanity, or if prescribed psychotropic drugs allow the defendant to be sane.
Both lawyers for the defense and lawyers for the state have an ethical duty to raise the issue of capacity if they have information suggesting that the defendant does not have sufficient present ability to consult with the defense lawyer with a reasonable degree of rational understanding, and otherwise assist in the defense, and does not have a rational as well as a factual understanding of the proceedings.
Whenever defense counsel has "a good faith doubt about the defendant's competence" to stand trial, defense counsel should move for an evaluation, even if the client objects, and, in any event, defense counsel should inform the court and the prosecutor of the issue. See ABA, Criminal Justice Mental Health Standards, Standard 7-4.3(c) (2016).
The American Bar Association's (ABA's) standards are online at www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/mental_health_standards_2016.authcheckdam.pdf.
Although the concept is often referred to, in shorthand, as the ability to "aid and assist," that phrase can be misleading, suggesting that the attorney-client relationship is the only factor that matters. The state statutory standards (see § 15.3-1 to § 15.3-1(c)) and the due-process rules (see § 15.3-2(a) to § 15.3-2(b)) make clear that the defendant must be able to have not just the ability to cooperate with counsel, and not just the ability to understand the charges that the defendant is facing, but also must have a rational understanding of the process.
More specifically, the law provides that only the defendant can make certain decisions, including the decisions to plead guilty or not guilty, to accept a plea bargain, to have a jury trial, and to testify. See Oregon RPC 1.2(a). The defendant must have the ability to rationally make these decisions before the defendant can be prosecuted for a crime. Defense counsel should focus on the client's rational ability to make these decisions, rather than just on whether the client can aid and assist counsel. A defendant can "pass" the state statutory tests, but still not be competent to stand trial because the defendant does not have a "rational" understanding, and thus the capacity, required by due-process considerations, to make the decisions that only the defendant can make.
The court has a continuing obligation "to raise the issue of incompetence to stand trial at any time the court has a good faith doubt as to the defendant's competence, and may raise the issue at any stage of the proceedings on its own motion." ABA, Criminal Justice Mental Health Standards, Standard 7-4.3(a). See also ORS 161.360(1).
§ 15.3-1 State Statutory Standards
The state standards regarding the capacity of a defendant to stand trial are set forth in ORS 161.360, but, as discussed below, there is a dueprocess overlay as well.
ORS 161.360 provides as follows:
(1) If, before or during the trial in any criminal case, the court has reason to doubt the defendant's fitness to proceed by reason of incapacity, the court may order an examination in the manner provided in ORS 161.365.
(2) A defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable:
(a) To understand the nature of the proceedings against the defendant;
(b) To assist and cooperate with the counsel of the defendant; or
(c) To participate in the defense of the defendant.
That is, a defendant may be found incapacitated if, as a result of a qualifying mental disorder, the defendant is unable to (1) understand the nature of the proceedings against the defendant, (2) assist and cooperate with the defense lawyer, or (3) participate in the defense. Oregon case law is silent on the meaning of these concepts in the statute. The federal due-process standard adds more protections than the state statute. See § 15.3-2(a) to § 15.3-2(b) (federal standards).
The lawyer should not confuse "capacity" to stand trial (under ORS 161.360, ORS 161.365, and ORS 161.370) with "competence." The procedure for declaring a person incompetent—that is, to civilly commit the person—is described in detail in § 15.13 to § 15.13-4(h). In sum, under Oregon law, to be incompetent and civilly committed, a person must be mentally ill and be a danger to self or others, or be unable to take care of basic personal needs and not be receiving care. Persons may not be dangerous and be able to take care of themselves, and yet not be able to stand trial because they do not understand the proceedings, or cannot assist and cooperate with the defense lawyer, or cannot participate in their defense. Ironically, an incarcerated mentally ill person, who otherwise could not take care of basic personal needs, may not be subject to civil commitment if the custodial facility is taking care of the person's needs. See, e.g., State v. Jensen, 141 Or App 391, 917 P2d 541 (1996) (to be civilly committed, an incarcerated person must show that basic needs are not being addressed in custody).
A lawyer who seeks an evaluation must make sure that any mental-health evaluator—and later the judge—understands the distinction between these two concepts. In practice, the terms are sometimes used interchangeably, so the lawyer needs to be clear about the context in which they are used.
Note that the "competency" versus "capacity"/"fitness" vocabulary distinction is under Oregon law; federal cases use "competency" to discuss a defendant's fitness to stand trial.
§ 15.3-1(a) Burden of Proof
Oregon law is unclear on who has the burden of proof on the issue of a defendant's capacity to stand trial. The state statutory standard for civil commitment (see § 15.13 to § 15.13-7(d)) places the burden of proof on the state, by "clear and convincing evidence." ORS 426.130(1). The same burden may apply to the capacity issue. Cf. Addington v. Texas, 441 US 418, 432-33, 99 S Ct 1804, 60 L Ed 2d 323 (1979) (due process requires a clear and convincing standard for initial civil commitment).
Under federal law, the Due Process Clause of the Fourteenth Amendment to the United States Constitution permits a state to place the burden on the defendant to show unfitness, by a balance of probabilities, before a hearing may be held; a state may also establish a rebuttable presumption of competence. Medina v. California, 505 US 437, 452, 112 S Ct 2572, 120 L Ed 2d 353 (1992). But placing the burden on the defendant to show unfitness by clear and convincing evidence violates the defendant's dueprocess rights. The United States Supreme Court has reaffirmed that a defendant has a "fundamental right not to stand trial while incompetent." Cooper v. Oklahoma, 517 US 348, 369, 116 S Ct 1373, 134 L Ed 2d 498 (1996).
The right to be fit continues through sentencing. State v. Simon, 294 Or App 840, 433 P3d 385 (2018), rev den, 365 Or 502 (2019) (reviewing state and federal law).
(There is no such due-process right to fitness during postjudgment proceedings, such as federal habeas corpus. Ryan v. Gonzales, 568 US 57, 133 S Ct 696, 184 L Ed 2d 528 (2013).)
§ 15.3-1(b) Procedure to Determine Capacity
When the court has "reason to doubt the defendant's fitness to proceed by reason of incapacity," it must make a ruling on capacity. ORS 161.365. The court "may call any witness to assist it in reaching its decision." ORS 161.365(1)(a).
In recent years, the legislature has been very focused on moving defendants needing evaluation and treatment from the Oregon State Hospital (OSH) to community evaluation and treatment, if possible. In the 2021 session, it modified the aid-and-assist statutes to attempt to shift to OSH only those patients who need a hospital-level of care or who are dangerous. If the defendant is charged with a felony, the court must find that the defendant "requires a hospital level of care due to public safety concerns if the defendant is not hospitalized or in custody or the acuity of symptoms of the defendant's qualifying mental disorder," plus it must find that community resources for restoration are not available. ORS 161.370(3)(a).
People who are charged with only misdemeanors cannot be committed to the hospital, in the absence of court findings about the defendant's...
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